Bob Woffinden

Treating contempt with contempt

British Journalism Review
Vol. 18, No. 2, 2007, pages 5-12

Bob Woffinden has been writing about miscarriages of justice for 20 years for various
publications, including The Guardian, the Daily Mail and The Sunday
Telegraph. His published books include Miscarriages of Justice and Hanratty:
The Final Verdict, and his book on the Sion Jenkins case will be published early next
year.

On April 20 2007, the Metropolitan Police handed over to the relevant
authorities the report on their year-long investigation into the loans-for-peerages
affair. Within 24 hours charges had been brought against a number
of those involved by The Times and Daily Mail. Well, not really, but that would
have been an understandable misperception at the time, because before the
file had even been opened, let alone considered by the Crown Prosecution
Service, much of the media had pre-determined what they anticipated the
outcome would be.

CHARGE THEM! was the Mail's headline. Its story added that the file
“demanded” the prosecution of the three people whose names had featured
most prominently in the ongoing inquiry – Lord Levy, the Labour party's
fundraiser, Ruth Turner, a senior aide to Tony Blair, and the biotech
millionaire and Labour Party donor Sir Christopher Evans. These were the
three names mentioned in most papers, but intriguingly The Sunday Times
added a fourth, that of Jonathan Powell, Blair's chief of staff. The paper
reported that the police believed they had gathered enough evidence to bring
a charge of conspiracy to pervert the course of justice against him.

Flesh was put on these bones by The Sunday Telegraph, reporting the
existence of a secret document which proved that “Mr Blair, Jonathan Powell
and Michael (Lord) Levy had to be central to every aspect of fund-raising”.
In 10 years of the Labour administration, the paper said, those three had
travelled “from a brave new dawn to the brink of an Old Bailey trial”. From
one perspective, the outcome of the investigation might have been thought
difficult to forecast; after all, there had only ever been one prosecution under
the 1925 Honours (Prevention of Abuses) Act. However, so much of a fait
accompli had the police investigation now become (as far as the media were
concerned), that within 48 hours the Mail on Sunday had switched its
attention to prejudicing an entirely different case, that of the murder in
London of Alexander Litvinenko, the former KGB agent, by naming the
three men against whom, it said, “arrest warrants are expected to be issued”.

The handover of the Metropolitan Police inquiry report to the CPS
ought to have been entirely confidential; at one time, no doubt, the
information might have come to light some weeks later, buried in an inside-page
news report. So the fact that not merely the exact stage of progress of
the inquiry, but also its presumed outcome, seemed instantly to have been
passed to every available media outlet, generated what was described as a
“furious reaction” from both the Labour party and, indeed, the CPS itself.
Sources within both claimed that the police were trying to use the media to
bounce the CPS into a position where it had no alternative but to press
charges. Frank Field, the Labour MP, commented: “The police's behaviour
has been disgraceful. They are obviously so unconfident of getting charges to
stick that they have leaked this.” A senior Downing Street source added: “I
don't think our opinion of the way the police have handled things could get
any lower.”

Quick off the mark

This reaction becomes explicable in the light of the full history of the
loans-for-peerages inquiry. It was launched after a complaint by Angus
MacNeil, the Scottish National Party MP. With unparliamentary-like
alacrity, Tony Wright, chairman of the House of Commons Public
Administration Committee, announced that the PAC would be holding
hearings into the matter. However, John Yates, the Scotland Yard assistant
commissioner who was heading the police inquiry, was equally quick off the
mark. He wrote to Wright, telling him: “Your scrutiny could be viewed as an
abuse of process in terms of fairness in any future criminal trial. I have
consulted closely with senior lawyers from the CPS about this. They share
my concerns. I concede that these matters cannot be considered sub judice at
this stage. I also recognise the authority of Parliament to consider and
scrutinise these matters.” However, Yates concluded that the matter could
only “be dealt with effectively through the police and the courts”.

Wright naturally acceded to the police request. Then, after there had
been a number of leaks about the inquiry in the press, Yates wrote to him
again on November 17 last year: “Speculation about the outcome and
progress of this inquiry is not something we welcome. It would seem
perverse to suggest that it is the police inquiry team who are placing matters
in the public domain. I say this in view of the significant time invested by us
in persuading you and your committee to do precisely the opposite [i.e. not
holding an inquiry and therefore not placing anything in the public domain],
firmly believing, as we do, that this may undermine the investigation. I
would emphasise that what may appear to be lack of detail I am able to
provide is purely a consequence of the overriding need to keep confidential
operational matters which may be the subject of future criminal
proceedings.”

Then, in March 2007, Lord Goldsmith, the Attorney-General, obtained
an injunction to prevent the BBC broadcasting details of a confidential email
it had obtained. The police argued that this could hamper their inquiry.
However, the injunction was subsequently dropped a few days later after The
Guardian published the information anyway. A last-ditch attempt similarly to
injunct The Guardian had been abandoned once it was accepted that the first
editions of the paper were already on their way to their destinations. If one
believed the police were responsible for the leaks to the media that occurred
after the inquiry report was delivered to the CPS, it might have appeared that
they had deliberately outflanked both Parliament and the courts in order to
place their own interpretation of events into the public domain; that they
had insisted no one should prejudice the judicial process so as to allow them
[the police] free rein to prejudice it themselves.

Whether or not it was coincidence, attention quickly shifted from this
furore because Peter Clarke, head of counter-terrorism at Scotland Yard,
raised renewed concerns about a parallel case of unrestrained reporting of an
ongoing police inquiry. On February 1, as nine people were being arrested in
Birmingham, the press carried alarmist stories about a plot against British
Muslim soldiers. There were sensationalist accounts of what this involved:
BEHEAD A HERO ran the Daily Mirror headline. “Terror gang planned to
kidnap, torture and behead a soldier on our doorstep”, said The Sun. The
reports generated a storm of controversy. It is, however, entirely possible
that nothing of what had been written was true. A week later, two of the
seven were released. “They have left the police station without any better
understanding of why they were there than when they first arrived seven
days ago,” commented their solicitor, Gareth Peirce. “Not a word was
mentioned to either of them about a kidnap plot, or a grisly beheading, or
even of a soldier at all.”

In condemning these reports almost three months later, the Met's
Deputy Assistant Commissioner Peter Clarke implied they had been true
and asserted they had not only “compromised” the investigation but had
“put lives at risk”. Absolving the police of blame, he instead criticised “a
small number of misguided individuals [who wish to gain] some short-term
presentational advantage” – in other words, he implied it had become
another aspect of political spin. (Conversely, police motives for leaking are
invariably merely financial.) The Guardian, however, insisted that these leaks
had come from both sources – from the political and the operational, from the
Home Office and the police.

Irrespective of whoever was responsible, what both the loans-for-peerages
and the “Birmingham beheading” affairs exemplified was a
relatively recent phenomenon: the widespread flouting of the Contempt of
Court Act. “The biggest press scandal of our time,” Peter Wilby wrote in The
Guardian, “is newspapers' consistent and brazen disregard for the contempt
laws.”

Orgy of excitement

One need not look far for other examples. In December 2006, the murders
of five women in the Ipswich area threw the media into an orgy of
excitement. For a time, no story was covered more dramatically and more
intensively – not just by the traditionally irresponsible media outlets, but by
everyone. The BBC's Huw Edwards, who (like the rest of us) presumably
imagined that outside-broadcast news presentation was reserved for high-level
diplomatic events such as G8 summits or European conferences, found
himself fronting the BBC news not from outside some grand historic palace
but the more prosaic location of a Suffolk police station.

By the time Stephen Wright had been charged with strangling the five
women, the press had done all they could to condemn him. The Sun had
already published a full front-page photograph of him with his hands round a
woman's throat, asking: “Is THIS the strangler?”; but that was only after
they had also done all they could to incriminate the previous suspect, and The
Daily Telegraph had carried on its front page an aerial photograph showing the
proximity of that man's house to the sites where the women went missing.

In another example, Miles Cooper, a school caretaker, was charged in
February 2007 with sending a series of letter bombs; again, during the time
between arrest and charge, the press had published significantly damaging
material about him. In this and other cases, details that only yesterday, it
seems, would have been held back for fear of influencing the judicial process
were now excitedly published.

When the full range of these cases is taken into consideration, it becomes
clear that who leaked what should be immaterial. The overriding issue is that
almost none of the material should be published, whether because it is
prejudicing either ongoing police inquiries or potential criminal trials, or,
simply, because it breaches the Contempt of Court Act. Paragraph 4(a) of
Schedule 1 of the Act explains that the contempt period begins with the
arrest of a suspect. In the past, there have been curious episodes in criminal
investigations specifically designed – again, or so it may have seemed – to
evade the scope of the Act. For example, in the Sarah Payne murder case, the
Daily Mail (February 3 2001) carried an extraordinary front-page headline
story: “Sarah: Murder Charge?” The copy read: “Detectives are poised to
charge a man with the murder of eight-year-old Sarah Payne... Roy Whiting,
42, has already been arrested and questioned twice during the investigation
and will be arrested for a third time early next week.” At this stage, clearly,
sub judice did not apply. One couldn't help thinking, however, that if the man
was indeed a dangerous murderer of children, why were the police waiting
until “early next week” to arrest him?

Today, however, such devices would be thought unnecessary. Over the
years, the press and television have simply chipped away at the margins of
the Act and, emboldened by the judiciary's reluctance to intervene, have
transgressed further and further into what was once forbidden territory. For
their part, the judges presumably recognise that they were dealt a very poor
hand by the original Act. Transgressors were to face either a maximum of
two years' imprisonment or a £500 fine; and no one today could conceive the
former being effected (and an editor, say, being imprisoned for contempt, as
was the Daily Mirror's Sylvester Bolam in 1949 over the paper's indiscretions
concerning John George Haigh and the “acid bath murders”).

Some might argue that judges have also faced the realities of the
situation. In the early 1990s, two important appeals – those of three young
Irish people convicted of conspiracy to bomb the home of Defence Secretary
Tom King; and of Michelle and Lisa Taylor, convicted of a murder in south
London – were allowed on the basis that the defendants had been denied fair
trials because of prejudicial publicity.

Today, judges do not accept such arguments (though lawyers will
sometimes still raise them). The judiciary seem to have concluded that if one
trial is stayed, or one appeal allowed, on the basis of prejudicial publicity,
then untold numbers of prosecutions would be undermined. They generally
say that juries are capable of putting publicity out of their minds in order to
focus on the evidence given in court.

The upshot is that the media now are, by and large, free to publish as
prejudicially as they wish, not merely without effective contempt of court
restraints but without any restraints at all. After all, the only other
inhibition had been the libel laws. However, no one facing the prospect of
serious charges is going to jeopardise his defence in the criminal courts by
simultaneously launching a civil action. And in yet another relatively recent
capitulation by the authorities to the power of the media, the time period for
bringing defamation proceedings was reduced to 12 months, so that even if
the suspect is ultimately acquitted and then wishes to sue for libel, he or she
may well be out of time.

Disgracefully opportunist

So in the current anarchy both the media and the prosecution can
virtually do as they please. Indeed, the boundaries have lately been stretched
even further. Some Crown lawyers – perhaps perceiving themselves as U.S.-style
district attorneys – have become disgracefully opportunist in thrusting
themselves into the media spotlight and holding press conferences to
announce the bringing of charges. This happened in the Suffolk stranglings
case, after charges were brought in relation to the July 7 2005 London
bombings, and even in the prosecution of a Liverpool grandmother whose
granddaughter was killed by a family-owned dangerous dog.

By the time charges are laid, and everyone really does have to accept that
proceedings are active, the suspect may well have been utterly traduced. The
whole point of contempt of court provisions was to ensure a fair trial, but
their practical effect today is to freeze the publicity process at the point of
maximum disadvantage for the defendant.

The media will put forward two main arguments to justify its lack of
restraint. Firstly, prosecutions have changed out of all recognition.
Historically, the three stages of the first part of a criminal investigation (its
beginning, with the crime or a suspected crime; the arrest; and the charge)
followed closely upon one another. Today there is likely to be considerable
distance between them (suspects in terrorist cases may be held for up to 28
days without charge, though the police would like to see that period
increased to 90 days). With such a time-span, the media would argue, it is
neither feasible nor desirable that the public should be kept in the dark.
When the criminal investigation concerns something like loans-for-peerages,
which may strike at the heart of the democratic process, it is even more
important that the people should be told what is going on.

The other issue is the technological developments that have overtaken
the media. In the 1930s, the British public could be kept in complete
ignorance of the future Edward VIII's liaison with Wallis Simpson simply
because the British media did not report it. It would be pointless for them to
demonstrate equivalent restraint over a news story today because everyone
would hear all about it anyway, either through the foreign press (which would
include Scottish and Irish newspapers), international television, or the
internet. Restraints on publication, the media would argue, are not viable
when the information will be circulated elsewhere anyway.

Faced with this situation, there are two realistic alternatives. One is to do
nothing, and accept that we're being overwhelmed with sources of
instantaneous information and therefore the only safeguard is not to stifle the
“official” sources but, in a sense, to let anarchy reign. Accordingly, some have
tried to argue that the only problem is that there's not too much prejudicial
publicity but too little – almost as if they were advocating a real trial by
media. This is wilfully to ignore the realities of the situation. Press coverage
whips up hate campaigns. We aren't ever going to have defence lawyers
running to the press asking for fair coverage for their client – they will always
look to the courts for justice. This is because they know the media destroy
the presumption of innocence. That is why we have always had the rules and
why it would be the greatest folly to abandon them.

It is abundantly clear that fair trials are undermined by prejudicial
publicity. It is difficult to see on what proper evidential basis Michael Stone
can have been convicted of the murders of mother and daughter Lin and
Megan Russell in Kent. He did, however, suffer continuing prejudicial
publicity. The appeal court acknowledged that he had been convicted on the
evidence of a man who was “not only prepared to lie, but to do so on oath”,
but nevertheless did not set aside the conviction.

The other alternative is to do something. The guiding principle for any
new contempt provisions must be that as much as possible is made public
after the trial or hearing and as little as possible before it. This would have
three real advantages. Firstly, contempt of court restrictions would come
into force seven days after the start of an investigation (by which time, in any
average case, the media have exhausted the story anyway). They would be
removed after 12 months; if, by that stage, there had been no charges, the
media could publish what they liked. If a court case was pending, they could
do so, as now, when the case concluded. On the one hand, this would allow the
police to conduct their inquiries without media pressure and, on the other,
would facilitate fair trials. Breaches in these restrictions would be punished
by severe fines.

Secondly, the provisions might help to reduce crime by curtailing, albeit
only slightly, media fascination with criminal cases. One of the issues of
recent years which society has refused to focus on is that many criminals are
motivated largely by publicity. They feel that all that can make sense of their
futile lives is the opportunity to get their name in the papers by committing
horrendous crime. A significant number of criminals are media-savvy. The
fact that Cho Seung-Hui, the Virginia gunman who killed 32 people,
interrupted his slaughter in order to post a package to the television station
NBC is one glaring example. Nor would the calming of media frenzy be an
entirely novel development. Britain, of course, already operates a virtually
complete media blackout in kidnapping cases – with the result that such
cases are rare.

Thirdly, enormous benefits would flow from allowing the full story to be
told once court proceedings had finished. At present, too many cases are still
smothered in reporting restrictions even when they are over. This applies,
obviously, in the family courts, where no publicity is allowed and where, as a
result, injustice has been rife. But there have also been criminal cases – for
instance, a number of cases of police corruption in east London – where
reporting restrictions have persisted for so long that the story has gone stale
and never been published at all. Impatience is generally held to be one of the
media's greatest virtues, but perhaps there are rare occasions when it is
better to delay publication. As Schopenhauer wrote: “The truth can wait, for
it lives a long time.”